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Opinions of Sunday, 9 November 2014

Columnist: Asare, Kwaku S.

To Her Ladyship

November 7, 2014

Dear Chief Justice Wood:

I am by this letter requesting that you officially clarify a matter that has plunged the country into a constitutional crisis. As your Ladyship is no doubt aware, the Constitution provides at Article 60, sub-articles (11) and (12) that:

“(11) Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.” “(12) The Speaker shall, before commencing to perform the functions of the President under clause (11) of this article, take and subscribe the oath set out in relation to the office of President.”

In furtherance of Article 60(12), your Ladyship is obliged to administer the Presidential oath to the Speaker whenever the President and Vice President are unable to perform the functions of the President. It is also clear from Article 60(11) that the Speaker’s warrant to perform the functions of the President expires when either the President or Vice-President is able to perform those functions. Because there is no such thing as a permanent Acting President, the Speaker is required to take and subscribe the Article 60(12) oath as many times as he has to perform the functions of the President under Article 60 (11). Without taking the oath under Article 60(12), the speaker cannot perform the functions of the President.

In Asare v Attorney General [2003-4] SCGLR 823, the Supreme Court held that “the purposive interpretation to be given to Article 60(11) is that where both the President and the Vice-President are absent from Ghana, they are to be regarded as unable to perform the functions of the President and thus the Speaker is obliged to perform those functions.”

Thus, when President Mahama was in Burkina Faso and Vice-President Amissah-Arthur was in India, both performing official functions, the Constitution, as interpreted by the Supreme Court in Asare, deemed them unable to perform their functions. In turn, this required your Ladyship to administer the oath to the Speaker to allow him to perform the functions of the President, as stipulated by Article 60(11)-(12).

On November 7, 2014, the President travelled to Nigeria while the Vice-President was still in India. It has been reported that your Ladyship returned to Parliament. However, the Presidential oath was, once again, not administered and the Speaker failed to act as President as required by Article 60(11) of the Constitution.

Thus, in clear and material violation of the Constitution, your Ladyship, on two occasions, has attempted to but has not administered the oath required by Article 60 (12) and the Speaker could not perform the functions required of him under Article 60(11). In consequence, there was no President of Ghana on November 5, 2014 and November 7, 2014, a situation that is strictly forbidden by the Constitution, as clearly and elegantly explained by the Supreme Court in the Asare case.

Your Ladyship will, no doubt, be aware that this situation is extremely serious, bordering on high crime, and a clear violation of you and the Speaker’s oaths of office. It is without doubt that these violations are impeachable offenses.

I respectfully request that your Ladyship should provide a, quick, official and detailed explanation of the incidents that occurred on November 5, 2014 and November 7, 2014 that has led to the current constitutional crisis. This explanation is necessary to allow a confused nation to understand the situation and take the appropriate remedial measures.

cc: The President, The Speaker of Parliament All Members of Parliament Council of State Media

Sincerely,

S. Kwaku Asare, CFE, JD, PhD